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Sunday, March 30, 2014

Padilla and Virginia -- we're looking for a good case! Do you have one?

In immigration related matters, the controlling case is Padilla v. Kentucky. This case indicated that if the judge did not review the immigration consequences of a plea, and further that the defense attorney did not advise the defendant of the impact a plea may have on him immigration status, that the case should be re-opened. This process is collectively known as "post-conviction relief."

However, there are a couple of caveats to this. First, under another case decided shortly after Padilla (Chaidez v. US), the Supreme Court ruled that no criminal conviction BEFORE the holding in Padilla could be challenged for want of informing the defendant of his/he immigration consequences. You did not indicate when your son was convicted.

Finally, the Supreme Court of Virginia basically indicated it would not follow Padilla. In a decision entitled Commonwealth v. Morris from 2011, the Court indicated that the vehicle for reviewing ineffective counsel claims did not exist (in terms of Padilla claims, it could not be coram nobis), so no claim could be made. We think this is bad law, and contrary to the Supreme Court of the United States. My law firm is very interested in challenging this, but has not found a meritorious case to do so, yet.

If you would like to discuss this further, feel free to give us a ring. Note, however, that litigation on matters of this type tends to be expensive and take some time. 703-402-2723.